Trends in Conscientious Objector Cases
By Maria Santelli, Center on Conscience and War
Published in the Spring 2016 issue of On Watch.
It’s called the Conscience Committee and it is a committee of the Army. It is not clear exactly who they are or what defines the bar they have set, but if you apply for recognition as a conscientious objector in Israel, they will be deciding your fate.
As I listened to a panel of “Refusniks” (draft and war resisters in Israel) on a speaking tour in the US, I felt as though they were recounting pieces of the story of conscientious objection in the United States 100 years ago.
I felt grateful for the substantial advancements we have made in extending and defending the rights of conscientious objectors in the US. Also, though, I considered the significant work still ahead of us.
The Center on Conscience & War has worked with Conscientious Objectors (COs) for over 75 years. Over the course of those many years, we have observed trends of both accommodation and repression of conscientious objection. Recently, our office has experienced a sharp rise in cases from members of the military seeking discharge as COs. At the same time, we are observing – and COs are experiencing – troubling and unexpected events and consequences at the decision-making levels of the different military branches.
When a member of the US military applies for CO discharge, their application must go through their local chain of command for several levels of review, before it is forwarded to the final approval authority. Up to that point, the process is reasonably predictable: the CO has an interview with a Chaplain, a psychological evaluation, and a hearing with an appointed Investigating Officer (IO). There are some variables at this level, including skepticism that the CO’s beliefs are sincere, harassment or other pressure from the immediate chain of command, delays, ignorance and unwillingness of the command to learn about the CO process, biases of the Chaplain and the Investigating Officer, and the extent to which a CO’s beliefs will be accommodated while their application is being processed. Fear of further delay or harassment, and the consideration that the chain of command can weigh in on the application, cause some COs to be hesitant to make waves and pressure the command for relief. Nevertheless, these issues generally are not insurmountable, and each has a clear path for redress or remedy. Once the CO application package leaves the local command, however, things get considerably murkier.
Similar to Israel’s Conscience Committee, the membership rolls of the CO review boards of the US military are not public. We do not know how they are seated, how they are trained, how many they number, how long they serve, or the details of their meetings. The processes set into motion after a CO package arrives at the approval authority are not transparent or public, making the potential (and reality) of violations of the rights of COs high. Additionally, because military CO is considered Department of Defense “personnel policy,” we are concerned that this absence of accountability and transparency could be undermining the very right to CO itself for members of the military.
Two recent cases underscore these concerns: one a young Army medic; the other, a seasoned Air Force officer. In the Army case, the CO is an atheist who, in just two drafts, composed a thorough, thoughtful, and very strong CO application. His record included several letters of support from peers and friends, a solid affirmation of his sincerity from the Chaplain, hours of hearing testimony of witnesses he called and those called by the IO – all of whom supported his claim. The Investigating Officer recommended approval, but no one else in the chain of command would do so. While his claim was pending, the CO endured harassment, excessive delays, isolation and psychological abuse. While this command seemed severe, these tactics were not unfamiliar, and we were certain that they would have no negative impact on his final decision once the CO package arrived at the Department of the Army CO Review Board (DACORB).
After their review, DACORB voted unanimously to approve the discharge request. The record was strong; in our view, there was no other conclusion they could have come to. Then, in an unexpected turn of events – a change in policy not made public and not in the regulation (last updated in 2006) – the 13-page decision of DACORB was overturned in a single line by the Deputy Assistant Secretary of the Army. Not only was it a blow to this young soldier, it was disturbing to us. The record was impeccable. The decision by the declared authority, DACORB, was resoundingly affirmative, yet this soldier would be disapproved by the stroke of a pen.
The Air Force case is troubling for a similar reason. For officers in the Air Force, the final decision is made by the Secretary (SAF) or her designate, so there isn’t the same question of transparency: we know in whose hands the officer’s fate rests. The issue here was the basis – or lack thereof – for the denial. This CO claim was one you could call very traditional, based on familiar Christian teachings and the life of Jesus. Despite a supportive chaplain, a thorough investigation and hearing, and a positive IO recommendation, the designated representative of the SAF denied the application. The stated reasons for the denial were not only completely contrived, but also easily rebutted with testimony from the written application and the hearing transcript. It was unsettling – to say the least – not just to see a sincere and flawless application be denied, but for the justification to be so blatantly fabricated.
We have yet to see similar aberrations in the Navy and the Marine Corps, but there are troubling issues in those branches, too. They share the lack of transparency with the other branches, of course and in the Marine Corps, CO is handled by an office within Manpower Management that is also responsible for managing the Change of Station budget for the entire branch! The result is that conscientious objection is not a priority and is routinely delayed for months, while the department focuses on financial issues. Meanwhile, COs in the Marine Corps – undoubtedly the most bellicose branch of the Armed Forces – are disproportionately subject to pressure, harassment, and ridicule from their commands and peers, while their applications languish at Manpower Management.
There is no question that the rights of COs have come a long way in the last 100 years. We are a far cry from the military tribunals and the torture and abuse that on several occasions resulted in the deaths of men who resisted military service in WWI. The COs drafted in WWII were able to perform civilian-directed alternative service program for COs drafted in WWII (made possible by CCW’s founders), and members of the military have had to opportunity to apply for CO discharge since 1962. These are substantial victories. But we still have a long way to go. Our work ahead is focused on guaranteeing transparency and accountability in the decision-making processes of the various branches; expeditious processing of CO applications at the lower and higher levels of the chains of command; updating the DOD process to the demands of RFRA as interpreted in the 2014 Supreme Court Decision on Hobby Lobby, by requiring fewer levels of skeptical review and instituting a non-discriminatory, more inclusive description of qualifying beliefs (i.e., accommodating religious training in Just War theory, etc.); and finally, putting an end to the environment of hostility that a CO is made to endure simply because their conscience tells them they cannot kill. n
Maria Santelli has been Director of the Center on Conscience & War since 2011. Before coming to CCW, Maria lived in Albuquerque, NM, where she organized the NM GI Rights Hotline, and Another Side: Truth in Military Recruiting.
 The DOD branches’ approval authorities are as follows:
- Headquarters Department of the Army Conscientious Objector Review Board (HQ DA CORB)
- AF Personnel Command
- Navy Personnel Command
- Marine Corps Manpower Management (CMC MM)